Court File and Parties

Court File No.: CV-20-649361 Date: 2023-01-10 Superior Court of Justice - Ontario

Re: Vassiliki Nanos, Plaintiff And: Wal-Mart Canada Corp., Defendant

Before: Associate Justice Jolley

Counsel: Ahmed Mohamed, counsel for the moving party plaintiff Thomas MacMillan, counsel for the responding party defendant

Heard: 15 December 2022

Reasons for Decision

[1] The plaintiff in this slip and fall action brings this motion for answers to undertakings, refusals and questions taken under advisement.

[2] As of the date of the motion, the parties had resolved all but one refusal. In the course of argument, defence counsel advised that his client was prepared to advise who prepared the Schedule B1 claims report and to provide sufficient particulars to enable the plaintiff to determine whether there were grounds to challenge the claim for privilege. The refusal was resolved on that basis.

[3] Under advisement 1 remains in issue. The plaintiff seeks production of a copy of the training modules relating to (a) floor inspections, (b) preventing safety hazards and (c) accident response. The defendant has agreed to provide the training modules related to floor inspections and preventing safety hazards but not the accident response modules. The plaintiff argues that the accident response module will assist her in determining what the defendant was required to do to investigate the cause of the fall and to determine what documents the defendant was required to retain.

[4] The defendant argues that this module is not relevant to liability or damages. There is no allegation of post accident negligent investigation. There is no indication that documents have not been produced and the defendant has agreed to provide all relevant documents, as required. Further, the plaintiff explored during discoveries what documents were required to be created or maintained after a fall.

[5] I am not satisfied that production of the accident response module is relevant for the reasons noted by the defendant. The refusal on under advisement 1 is upheld.

[6] The defendant has agreed to answer a narrower version of under advisements 2 and 3 as reflected in the draft order. Under advisement 4 to provide the sweep log has been answered according to the chat.

[7] At under advisement 5, the plaintiff requested the defendant provide a list of products that were in the aisle where the accident happened at or around the date of loss and a planogram of where they were located. The defendant has advised that there were health and beauty products and shaving cream in the aisle. The defendant does not contest the plaintiff’s evidence that she slipped on a substance and that a witness advised that it was shaving cream. The defendant has confirmed that shaving cream was present in the aisle. This information is sufficient and no further information is required.

[8] As to the undertakings, the defendant continues to make best efforts to provide the last name referenced in undertaking 1. It has also asked Modern Maintenance who was working on the date of the slip and fall in response to undertaking 2. It will advise the plaintiff of the results of that and its follow up request.

[9] The defendant has already provided a redacted contract in answer to undertaking 6, and on the motion agreed to provide sufficient particulars as to what has been redacted and the rationale for the redaction.

[10] The defendant has agreed to provide a further and better affidavit of documents and to attend a further examination.

[11] In its submissions, the defendant sought an order that the plaintiff’s motion record be struck due to the plaintiff’s inclusion of portions of the defendant’s mediation brief. The plaintiff argues that she was justified in including those excerpts from the defendant’s mediation brief as they confirmed that the defendant had policies and procedures in place relating to the frequency of sweeping. She needed to demonstrate that those policies existed in support of her motion for their production.

[12] She was incorrect. Privilege protects mediation documents from being disclosed. That privilege cannot be ignored because a documents is particularly relevant or helpful to the other side. There is no exception that would warrant production of this privileged information and it should not have been produced.

[13] The plaintiff’s current motion and factum shall be subject to a sealing order. The plaintiff will remove the existing record from caselines and replace it with a record that removes paragraphs 10-13 from the affidavit of Amanda Vilaisavanh sworn 5 December 2022 and all related exhibits to those paragraphs. She shall also remove and refile a factum that removes paragraph 26 and any other references to any mediation materials filed by the defendant.

[14] On the issue of costs, the plaintiff served her motion in March 2022. While the defendant did make concessions and provided answers, it admittedly did so either on the eve of or during the motion. Further, the defendant’s materials were also uploaded late to caselines.

[15] I also note that the plaintiff sent multiple request letters, to which the defendant did not respond, before bringing her motion. The defendant’s discovery was held in May 2021 so the motion can hardly be said to have been brought prematurely.

[16] The plaintiff seeks her costs of $5,499.03 on a partial indemnity basis in addition to HST and $901.80 in disbursements for a total costs amount of roughly $7,000. She was partially successful on the motion. Considering all the circumstances, including a reduction in costs related to the improper inclusion of privilege materials, I order the defendant to pay the plaintiff her costs on a partial indemnity basis in the all inclusive amount of $3,500.

[17] I have signed the draft order, with appropriate amendments.

Associate Justice Jolley Date: 10 January 2023